Archive for January 30th, 2008

When a person is arrested for DUI, his driverâ€™s license is confiscated by the arresting officer and he is given a notice of â€œadministrative suspensionâ€. He is also given a citation to appear in court to face criminal drunk driving charges. These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI or DWI) and driving with .08%, which takes place in the courts.

In other words, even though he only drove once, the individual is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

It gets worseâ€¦.The driver has already been punished by another state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. If he is later convicted in the stateâ€™s criminal court of driving over .08% (and/or driving under the influence), he will be punished once again. The sentence may involve jail, fines, DUI schools, community work, probation â€” and a restricted, suspended or revoked license.

How many times can the state prosecute a person for a single crime?

Our Constitution says only once. The Fifth Amendment specifically provides that no person shall â€œbe subject for the same offense to be twice put in jeopardy of life and limbâ€. So is this another example of â€œthe DUI exception to the Constitutionâ€?

Letâ€™s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, â€œthe test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not.â€ Sering v. State, 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So itâ€™s ok to prosecute and convict him for both crimes â€“ so long as you donâ€™t punish him for both.

Hmmâ€¦

Well, what about punishing the driver by suspending his license when heâ€™s arrested â€” and then punishing him again in court? In fact, punishing him in court with a sentence that may include another license suspension?

This one caused the judges a bit more trouble. This wasnâ€™t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitutionâ€¦.

The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a â€œpunishmentâ€ but only a â€œcivil sanctionâ€. Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a â€œcivil sanctionâ€ was actually a punishment â€” and thus double jeopardy â€” if (1) the â€œclear focus of (the statute) is on the culpability of the individualâ€, and (2) the legislature â€œunderstood these provisions as serving to deter and punishâ€. The Court added that â€œthe historical understanding of forfeiture as punishmentâ€ weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Courtâ€™s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement, insurance companies and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court.

In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Courtâ€™s ruling: â€œWe believe that Halperâ€™s deviation from long-standing double jeopardy principles was ill-consideredâ€¦.Halperâ€™s test for determining whether a particular sanction is â€œpunitiveâ€, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkableâ€. Hudson v. U.S., 592 U.S. 93 (1997).

Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driverâ€™s license of a drunk driving suspect is merely administering a â€œcivil sanctionâ€, not punishmentâ€¦.and that when he is later convicted in court and is fined, jailed and has his license suspended again, well thatâ€™s not really double jeopardy or multiple punishment. It just looks an awful lot like it.

From Lewis Carroll, Through the Looking Glass:

â€œWhen I use a word,â€ Humpty Dumpty said, in a rather scornful tone, â€œit means just what I choose it to mean, neither more nor less.â€

â€œThe question is,â€ said Alice, â€œwhether you can make words mean so many different things.â€